Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.


Federalist Society National Lawyer's Convention Schedule Updated, Justice O'Connor no longer speaking

October 14th, 2009

To Conservative and Libertarian Lawyers, attendance at the Federalist Society National Lawyers Convention is the equivalent of the Hajj. I have attended every year since 2006, and this is, without a doubt, my favorite event of the year. And there is a very good chance I will be liveblogging the conference this year. Stay tuned.

The Federalist Society just posted an updated schedule.

But the biggest change, is that Justice O’Connor is no longer speaking. In previous announcements, the Federalist Society advertised that Justice O’Connor would be speaking on Thursday at 11:15-12:00 noon in the Grand Ballroom. But in her place,  is now a conspicuous block labeled TBA.

Compare the updated page with the Google Cached version. Federalist Society replaced Justice O’Connor’s picture with a picture of Marc Levin.

This is curious, because last year Justice Scalia was slated to debate Judge Posner. That would have been a lively discussion, in light of Judge Posner ripping Scalia regarding Heller. Scalia dropped out shortly before the debate, and the mavens at the Federalist Society deftly slotted in then Judge McConnell. I heard from a source in the know that there was a reason Scalia dropped out, but I could not get the reason out of him. Some things the world may never know.

So what happened to SOC? Or is it SDO?

The Federalist Society added Mark Levin, talk radio host and author of Liberty and Tyranny. I have been listening to Levin for close to 7 years since he was on Sunday mornings on WABC in New York City. He is a friend of liberty.

This should be an awesome conference, and I highly encourage everyone to attend.

Textualist/Originalist Old Testament Scholar Reveals Bible Mistranslated, God did not create the Earth

October 14th, 2009

This article may cause a bit of a stir (H/T Greg B. on fb):

Professor Ellen van Wolde, a respected Old Testament scholar and author, claims the first sentence of Genesis “in the beginning God created the Heaven and the Earth” is not a true translation of the Hebrew.

The first sentence should now read “in the beginning God separated the Heaven and the Earth”

She said: “It meant to say that God did create humans and animals, but not the Earth itself.”

A spokesman for the Radboud University said: “The new interpretation is a complete shake up of the story of the Creation as we know it.”

Prof Van Wolde added: “The traditional view of God the Creator is untenable now.”

But what is most interesting to me, is the textualist/originalist type analysis she employs.

Prof Van Wolde, 54, who will present a thesis on the subject at Radboud University in The Netherlands where she studies, said she had re-analysed the original Hebrew text and placed it in the context of the Bible as a whole, and in the context of other creation stories from ancient Mesopotamia.

She said she eventually concluded the Hebrew verb “bara”, which is used in the first sentence of the book of Genesis, does not mean “to create” but to “spatially separate”.

She writes in her thesis that the new translation fits in with ancient texts.

This methodology could come right out of a Scalia opinion. She considers the words used in the context in which they were  written, she looks to dictionaries for meaning, and explores other contemporary texts. Fascinating. Original public meaning theology anyone?

1st Circuit Upholds Ban on Minors Possessing Guns

October 14th, 2009

From BNA, the First Circuit held on August 31, 2009:

The U.S. Court of Appeals for the First Circuit held Aug. 31 that nothing in the U.S. Supreme Court’s most recent interpretations of the Constitution’s Second Amendment and Commerce Clause has undermined prior rulings upholding the law that makes it a federal crime for a minor to possess a handgun, 18 U.S.C. §922(x)(2)(A). With respect to the Second Amendment challenge, the court decided that Section §922(x)(2)(A) is unlike the handgun ban struck down in District of Columbia v. Heller, 83 CrL 5148 (U.S. 2008), because it contains a number of exceptions, including one for self-defense and defense of others. (United States v. Rene E., 1st Cir., No. 08-1974, 8/31/09)

In an opinion by Judge Kermit V. Lipez, the First Circuit held that “Heller does not render section 922(x)(2)(A) unconstitutional as applied” to the defendant in this case, who was 17 when he was caught with a handgun. “We rest our conclusion on the existence of a longstanding tradition of prohibiting juveniles from both receiving and possessing handguns,” the court said.

“Nothing in Morrison or Raich undermines our analysis of section 922(x)(2) in Cardoza,” the First Circuit decided. “Both decisions reaffirmed Congress’s power to regulate intrastate economic activity that substantially affects interstate commerce,” the court stressed. It also agreed with decisions from other circuits that have characterized other firearms prohibition statutes as suppressing demand and being, therefore, an essential part of regulating the national market in firearms.

This opinion seems about right in light of the limiting dicta from Heller. Although I appreciate the test Justice Scalia proposed regarding “longstanding traditions” to determine if a regulation is consonant with the 2nd Amendment, this test has its limitations. Largely because the original meaning of the 2nd amendment was largely ignored for the last century. Any traditions and regulations enacted in light of that misunderstanding are constitutionally flawed and suspect. Relying on such traditions, premised on a collective right to keep and bear arms, seems illogical and likely unconstitutional.

One related issue are bans on non-violent felons possessing firearms . See this article, “Why can’t Martha Stewart Own a Gun,” by C. Kevin Marshall which provides a lengthy discussion of the history of regulations restricting access to weapons by those convicted of crimes, before and after the Bill of Rights was adopted. It always struck me as odd that non-violent felons, because of one bad act, are forbidding forever from keeping arms at home for purposes of self defense.  From Professor Lunds’s summary of Marshall’s article

While acknowledging that this history cannot solve all line-drawing problems, Mr. Marshall makes a powerful case that the traditional understanding of the right to arms did not authorize much more than laws forbidding those convicted of crimes of violence to carry firearms outside their homes, and possibly also forbidding them to possess easily concealable weapons, at least for as long as the offender continued to present a credible threat of recidivism.

If in fact the 2nd amendment is an individual right, on equal footing with other rights in the Bill of Rights, why is it still treated as an ugly red-headed stepchild. If Congress passed a law forbidding a person who violated election law from advocating for a political cause at any point in the future, would we not pause to argue this violates the First Amendment. But if a person commits a non-violent offense (tax evasion for example), that person’s individual right to keep and bear arms is forever eliminated. Professor Lund’s article addresses this point (pp. 14-15):

“[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill . . . .”32 This certainly sounds unobjectionable, at least at first. But how “longstanding” are these prohibitions? Justice Scalia either doesn’t know, or decided not to tell us. Apparently, however, the first general ban on the possession of firearms by felons was enacted in 1968.33
Longstanding? This was 177 years after the adoption of the Second Amendment, and less than a decade before the D.C. handgun ban was enacted.

Aside from the absence of historical support for the claim that such prohibitions are consistent with the preexisting right to arms, they are inconsistent with what Justice Scalia himself calls its “core,” namely self defense.34 On what understanding of that core does it make any sense to leave American citizens defenseless in their own homes for the rest of their lives on the basis of nothing more than a nonviolent felony like tax evasion
or insider trading? It would make more sense to say that the government may silence these felons for the rest of their lives regulatory crimes, after all, usually involve an abuse of speech, such as making false statements to the government or negotiating contracts that the government forbids. Such regulatory crimes have nothing at all to do with violence or the use of firearms.

It is also relevant to keep in mind the over-criminalization of our country. I have absolutely no idea how many felonies there are, but I’m pretty sure I violate at least one a day. Whereas at common law, where there were a relatively few number of felonies, today the number of infinitely larger, thus increasing the likelihood that a person will do something to foreclose his right to possess arms to defend himself at home.

Congratulations Cato. Cato Declaration and Constitution Makes Wash Post Best Seller List

October 11th, 2009

In my previous post I joked about Justice Scalia earning royalties from selling Constitutions based on all the originalist opinions he wrote.

Well if someone is going to earn some Sheckels from selling Constitutions, I’m sure as hell glad that its the Cato Institute.

Congrats to Roger Pilon (here is a pic of a Constitution he signed), Ilya Shapiro, and everyone else at Cato, as the Cato Pocket Declaration and Constitution has officially landed at #6 on the Washington Post Best Seller List. It came only 3 places behind Glenn Beck’s latest rant, and ahead of Freakanomics and Sense and Sensibilities and Seamonsters.

Cato Institute Declaration and Constitution

Cato Institute Declaration and Constitution

This is my favorite Pocket Constitution, and I have signed copies from Justice Scalia and Thomas, as well as many others. Buy a copy and support a great group of libertarians!

I see a parallel with the Cato Constitution selling so many copies of a 200 year old document, and the sale of Ayn Rand’s opus, Atlas Shrugged, which has been flying off the shelves since the election of our 44th President. With society’s move towards statism, the people realize how important the precepts of Jefferson, Madison, and Rand are. As Roger inscribed, I hope that the Cato Constitution inspires us all to better secure the precepts set forth in these documents.

While I am on the topic of pocket constitutions, something I take seriously, it is also worth noting that the Federalist Society pocket constitution does NOT include the Declaration of Independence. This always irked me. And the American Constitution Society pocket constitution not only includes the Declaration and the Constitution, but additionally the Gettysburg Address. I suppose the Gettysburg Address is relevant to the extent it impacted the drafting of the Reconstruction Amendments, but I’m not quite why it is in there.

New Tradition: Every Friday, Stories of My Healthy Obsession with Article III

October 9th, 2009

I have a peculiar hobby. I take pictures with Judges and collect Constitutions autographed by Judges. I have quite a collection.

As you may imagine, getting and autographs from and phootgraphs with so many Judges is not the easiest task. So I figured every Friday, I would share a photo, and the story behind it.

Later today I will explore the story of how I persuaded Justice Thomas and Justice Scalia to sign the same constitution. Stay tuned for that post later today.

In the meantime, check out the rest of my album on facebook.